cross examined by the defendant. In the case of EKPENYONG VS. THE STATE (1991) 6 NWLR Pt. 200 Pg. 683, Kolawole JCA at page 696 paragraphs D – G held as follows: “The learned trial judge was clearly wrong to have used Exhibit H for two reasons. Learned counsel for the appellant in the Court below did not ask that the Court should make use of Exhibit H in his address for any purpose. Exhibit H was not tendered for the purpose of cross examination as to previous statement made in writing in pursuance of Section 198 of the Evidence Act or for the purpose of impeaching the credit of the witness in pursuance of Section 209 of the Evidence Act. In LAYONU & OTHERS VS. THE STATE (1967) 1 ALL NLR 198 Brett JSC observed at page 207 thus: “In our experience the principle has always been applied, as it was in R VS. ADEBANJO 1935 2 WACA 315, to any written statement in the possession of the prosecution which was made by a witness called by the prosecution and relates to any matter on which the witness has given evidence. Such a statement is not evidence of the facts contained in it and the only use to which the defence can put it is to cross-examine the witness on it and then if it is intended to impeach his credit, to put the statement in evidence for that purpose.” The authorities therefore have established that in a situation like the instant one where the witness whose statement has been admitted never testified at all, the statement Exhibit H should never have been considered as evidence of the facts 13